Penn State Trustees Violated State Law

Penn State Trustees Violated State
Law

The Penn
State Board of Trustees may have several times violated
state law for its failure to publicly announce meetings and
how it handled the firing of Coach Joe Paterno. However,
these violations may be the least of the Board’s worries,
as it scrambles to reduce fall-out from the scandal that
began with revelations that an assistant football coach may
be a serial child molester, and that the university may have
been negligent.

The state’s Sunshine Act [65 Pa.C.S.A
§701–710] requires all public bodies to publish notices
at least 24 hours before their meetings. The purpose is to
eliminate secret meetings. Penn State, a private university,
which received $279 million from the Commonwealth for its
2011–2012 budget, is bound by the Sunshine Act.

A public
notice did appear in the Centre Daily Times, State
College’s hometown newspaper, three days before a
regularly-scheduled board meeting, Friday Nov. 11. But, the
Trustees were caught flat-footed the week before by what
eventually turned into the largest scandal in its history.
These are events the Trustees should have been aware of for
at least two years; certainly, the Board should have known
there was a problem when the Harrisburg Patriot-News broke a
story in March that the Grand Jury was investigating former
defensive coordinator Jerry Sandusky.

But, based upon
Board incompetence, there wasn’t even a crisis management
plan in place when Sandusky was arrested Nov. 5, and
Athletic Director Tim Curley; and Gary Schultz, senior
vice-president of finance and administration, were charged
with perjury and failure to report a crime to police. The
Trustees allowed Curley to take an administrative leave, and
Schultz to return to retirement. Schultz, who had worked for
Penn State for 40 years, had retired in 2009, but had been
brought back on an interim basis in July. Both Curley’s
and Schultz’s decisions were probably influenced by the
Board demands.

During the two weeks, beginning Nov. 5, the
Board had conference calls, executive sessions, and
emergency meetings, all without public notice.

Conference
calls involving a quorum without public notice aren’t
allowed. At least one conference call was conducted on
Saturday, Nov. 5. A meeting by telephone is just as illegal
as a meeting with all persons at a table if it isn’t
publically announced.

Several emergency meetings were held
the next few days. The Sunshine Act allows emergency
meetings. The Trustees conducted meetings Sunday, Nov. 6,
Monday, Nov. 7, and Wednesday, Nov. 9. By law, an emergency
meeting can be called, without public notice, only for
“the purpose of dealing with a real or potential emergency
involving a clear and present danger to life or property.”
[65 Pa.C.S.A §703] Even in the wildest stretch of that
definition, there was no clear and present danger. That
occurred years ago when the university didn’t contact
police to report the actions of a man believed to be a child
molester.

Executive sessions to discuss personnel issues
and some other items are allowed—if they are announced at
public meetings “immediately prior or subsequent to the
executive session.” [65 Pa.C.S.S. §708(b)] But, they were
not. About 10 p.m., Nov. 9, following an emergency meeting,
Board vice-chair John P. Surma, flanked by 21 of the 31
trustees, publicly announced it had fired Paterno and PSU
president Graham Spanier. Surma told the media the decision
was unanimous, thus indicating a vote was done in secret and
not under public scrutiny as required.

The Trustees also
violated both Paterno’s and Spanier’s rights under law.
It’s doubtful the Board members, most of them in corporate
business, even care. How they handled Paterno’s firing is
indicative they have little regard for employee rights and
due process. Paterno had previously said he would retire at
the end of the season, since he believed, “the Board of
Trustees should not spend a single minute discussing my
status. They have far more important matters to address. I
want to make this as easy for them as I possibly can.” The
Trustees, undoubtedly, believed firing Paterno immediately
would take heat off the university. Again, it was
wrong.

Although executive sessions may be conducted in
private, the Sunshine Act requires that “individual
employees or appointees whose rights could be adversely
affected may request, in writing, that the matter or matters
be discussed at an open meeting.” [65 Pa.C.S.A.
§708(a)(1)] The Board, according to a report in the Easton
Express-Times, had ordered Spanier to resign or be fired. He
chose to resign. Paterno was not contacted by the Board
prior to termination, either to request to be heard or to
request an open meeting. Paterno was informed of his
termination by a hand-delivered letter that demanded he
place a phone call to a board member. There was no
indication in that letter of what the Board’s decision
was.

Violating the law could result in invalidating
decisions made at those meetings, and penalties of $1,000
for each violation; until September, the penalty had been a
paltry $100. But here’s a nice twist. The Trustees
probably don’t care.

A district attorney must approve
prosecution for Sunshine Act violations. Although the
Pennsylvania Newspaper Association receives about 1,000
inquiries each year about what may be Sunshine Act and
Right-to-Know law violations, “it’s rare for criminal
prosecutions of the Sunshine Act,” according to Melissa
Melewsky, media law council for the PNA. Civil actions by
individuals are likewise difficult to pursue because of
significant costs.

Here’s another surprise. Because of
heavy lobbying to the legislature, whose members are feasted
at one home game a year and can also receive comp football
tickets to other home football games, Penn State is not
bound by the state’s Right-to-Know law. This means that
innumerable records, including minutes of all meetings—
both public and those that are illegal under the Sunshine
Act—can still be secret.

Here’s something not so
surprising, however. Penn State’s Public Affairs office
punted all questions to the Board. The Board arrogantly has
refused to answer both verbal and written questions.
However, possibly using public funds, it did hire a PR firm
to handle crisis management issues. We won’t know the
cost—that’s something it doesn’t have to tell the
taxpayers.

*************

Assisting
on this story was Melissa Melewsky, media law counsel of the
Pennsylvania Newspaper Association. Walter
Brasch, as president of both the Keystone chapter of the
Society of Professional Journalists and Pennsylvania Press
Club, was active in fighting for a stronger Right-to-Know
law and enforcement of the Sunshine Act. He is an
award-winning syndicated columnist and retired university
professor. His latest book is Before the First Snow, a
mystery/thriller set in Pennsylvania.

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